In which a veteran of cultural studies seminars in the 1990's moves into academic administration and finds himself a married suburban father of two. Foucault, plus lawn care. Comments are welcome. Comments for general readership can be posted directly after the blog entry. For private comments, I can be reached at deandad at gmail dot com. The opinions expressed here are my own (or those of commenters), and not those of my (unnamed) employer.

Friday, April 27, 2007

I'll Sue!

Over at Profgrrrrl's, there's a discussion going on about a student threatening to sue over a grade she didn't like. The student followed the normal appeals process, lost at every step, and is now threatening a civil action to get either a higher grade or monetary damages.

In seven years of deaning, I've literally lost track of the number of times I've been threatened with legal action. It's actually reached the deposition stage exactly once. I've been found guilty or liable exactly zero. I've never seen a professor successfully sued. In my experience, far more damage is done through the threat of lawsuits than through the actual suits themselves, since actual suits rarely develop.

There's a tremendous amount of ignorance and speculation about the law and the judicial system floating around. Some of it is probably the natural side effect of complexity – although I drive to work every day, I have only the vaguest idea how my car's engine works. (Admittedly, listening to Car Talk every week has helped a bit.) Some of it, I think, is the result of distortion through publicity. The occasional forehead-slapper of a case gets far more coverage than most, so if you aren't paying attention, you'll take the occasional wacky one as representative. (And yes, wacky ones do exist.) And a lot of it, I think, comes down to a fundamental category mistake most people make: they don't (or can't) distinguish process from substance. Put differently, they can't distinguish 'legal' from 'fair.'

From what I've gathered – and I'll admit right now that I'm not a lawyer – it's far more important to the courts that the basis of a decision be legitimate than that the decision itself be correct. If a professor can show that the components of a grade were clearly outlined on the syllabus and that they were followed as written, then it really doesn't matter if what you gave a C I would have given a B. Specific academic judgments of quality are part of a professor's job, and yes, they involve judgments. But as long as the process used to make those judgments is reasonable, you're in good shape.

(That means you could get in trouble if you didn't give criteria for grades, or if you included criteria you never disclosed. Criteria could be as simple as: 1st exam, 25%; 2nd exam, 25%, etc.)

The same holds for certain personnel decisions. Shortly before I left, Proprietary U did a round of faculty layoffs. I was in on some of the conversations about how to decide who to let go. (Notice the distinction between “conversations about how to decide who to let go” and “conversations about who to let go.” That's the key difference. If you have the second without having the first, you're in for a heap of trouble.) My contribution was to point out the page in the employee handbook that listed four criteria to be used in any layoff, and to develop a grid based on those criteria. (Surprisingly, nobody else thought to read the handbook.) When I explained to my admin colleagues that using relatively simple, pre-publicized criteria could avoid some nasty issues down the line, they went for it. When the faculty started to get jumpy and demand answers, I simply referred them to the four criteria, even going so far at one point as to photocopy them and hand them out at a meeting. Yes, there were still borderline cases where some judgments had to be made, but I could honestly say that the basis for the judgments was reasonable. (The weird side effect was that the HR director sent my grid to Home Office, where it was copied – names and numbers removed – and sent to the other campuses as the My Campus Model for layoffs. Not how I'd choose to be remembered, but that's how it goes.)

(The distinction between process and result collapses in certain discrimination cases, where a result can be taken as prima facie evidence of a corrupt process. At that point, the accused has to prove a negative. The wisdom of this exception I leave to the reader.)

The benefit to paying attention to this stuff upfront is that when you do, and somebody starts yelling “I'll sue!,” you can call the bluff. I've become very good at saying “the college attorney's name is x, and here's my card so you spell my name right.” I've had a few conversations with folks who've tried to intimidate me with legal jargon and/or threats, and have found that doing the process-thinking in advance makes it much easier to just keep doing what I need to do. To the uninformed, that process-thinking can look like paper-pushing or administrative makework. But it isn't. In fact, failing to do it puts everything else we do in jeopardy.

Bluff-calling works especially well with victim bullies. Since threats are their oxygen, the ability to ignore their threats is devastating.

Where this stuff breaks down is when an organization gets so conflict-averse that it tries to appease people who really don't have a case. Once you start down that path, there's no end to it. (Give the litigious student an 'A,' and every student will start threatening to sue.) If it were up to me, the legal system would be much quicker to dismiss many cases out of hand, so nobody would have to settle just to avoid the nuisance of going through the process. I'd also be a lot quicker to impose severe penalties for frivolous claims, since they amount to nothing more than attempted extortion by another name. But you work with the judicial system you have, not the one you want.

If the student threatens to sue, let her. Sometimes in this business you have to be the bad guy. If you don't have the stomach (or the integrity) for that, find another line of work.

I'm almost afraid to ask, but what's the silliest threat-to-sue you've received?

I have seen syllabi (and tests and semester papers), however, that seem to me an invitation. No criteria for grades. Tests with no indication of the relative value of questions. Assignments with no indication of how the grade will be determined.

When I was a-deaning, we had one academic case, involving an adjunct (a first-timer) and a test score. I asked another faculty member to regrade it (after my secretary re-typed it, so there were no comments, and co on). It got a lower score when regraded. End of that situation.

My office has the pleasure of dealing with campus telephone wiring. Several years back we had a claim from a student that a previous tenant's long distance company was attempting to collect payment from him for calls made by the previous tenant.

I told him I'd investigate and see what could be done about it, but that I couldn't do anything without some documentation to back me up, namely copies of the disputed bills. After some complaining, he eventually produced bills amounting to about 1/3 of the total he claimed was in dispute (about $350) and, yes, threatened to sue if we didn't cought it up. (Why we were responsible for the telephone company's errors is left as an exercise for the reader.)

It eventually ended up with our CFO, who decided to give him some money (I believe 50% of what he was asking for) to go away.

My wife, who runs a number of job-related programs at the SLAC where I work, too, routinely gets threatened with legal action when she enforces deadlines for participation in these programs, even if the student who has missed the deadline is so late that a program has been completed or had used up all of its money.

One student threatened to sue this spring when she was given what she listed as her second choice for study abroad instead of her first. It turns out she didn't realize that marking an option as a second choice actually meant she might end up with that option. We paid off another student who was willing to switch so the first student could get her first choice.

We routinely accept seniors to programs for which they are not at all qualified so they will not be able to challenge a promise the college makes for participation in certain programs and graduation in four years. We do this to avoid anticipated legal action.

I was the disciplinary official in a previous job. The best defense is prevention. Prevention is spelled "Due Process." The courts won't touch you if you have a process in place and follow it, no matter how arcane or convoluted it is.

My experience is the opposite; I have been involved in three cases which should have involved legal action but in which the students involved were successfully stonewalled and intimidated into silence.

We have been threatened by a student's mother. The student was caught cheating twice (and subsequently dismissed from the program); the second while on probation during the investigation of the first! Her defense in front to the board was "if the teacher was any good, she would have caught me the first time." And the board actually had to deliberate!

At my small, southern, historically black college, it seems like everyone has an attorney on retainer. Faculty threaten to sue if they don't get the class schedule they want. Parents say they're going to contact their lawyers because the instructor clearly has a vendetta against their children. One parent was highly upset with me because I wouldn't tell her nephew that there were no job opportunities in the field of social sciences. One secret administration official told me that the college is likely to grant any request that has a medical excuse attached to it, for fear of incurring a lawsuit from the faculty/staff member. Essentially, victim bullies run my college.

Much of this are the consequences of segregation. The college suffered in silence with the absence of critical resources for a long time. But, this also indicates that my school is really having a lot of difficulty finding its way in a post-Civil Rights Movement world. It's payback time, but the old mentality of deprivation and victimhood still exists.

Much of this are the consequences of segregation. The college suffered in silence with the absence of critical resources for a long time. But, this also indicates that my school is really having a lot of difficulty finding its way in a post-Civil Rights Movement world. It's payback time, but the old mentality of deprivation and victimhood still exists.

Everything you've described sounds like my experience on the faculty at Bowdoin.

I've only had one, and it was a pretty strange one. There was a student (mature, older woman) who was relying quite heavily on the girl she sat next to in class. So, on the day of the test, I gave very clear instructions to the whole class about sitting apart and not talking. Student went to the chair threatening action against me for accusing her of cheating. Possible guilty conscience at work?

I'm not an educator but a student. I stumbled upon this page while exploring options other than a lawsuit. I would appreciate any guidance you as educators may provide. Briefly the situation is as follows. I am a disabled student (combat ptsd and tbi) and registered with the DSPS at my school. The first week of class I presented my instructor in question with the paperwork for my accommodations. Which were a peer note taker and extra absences although I will complete all assigned work. Two weeks into the semester the instructor informs me that I will not receive any notes for days I am absent. Nine weeks into the semester I have received only the first week of notes and the instructor drops me from the class on the 5th absence. The school policy is six.I contact the DSPS and after they speak with the instructor I receive a series of hostile emails. I need the class as it will effect not only my gpa but also my livelihood(G.I.Bill). I feel this instructor is going out of his/her way to remove or fail me. Additionally the DSPS coordinator feels the same. Thank you for any advice you may have.